' UMAR ATA BANDIAL, J.-The impugned order dated 20-5-2006 passed by the learned Election Tribunal has declared the petitioner No.l to be disqualified to contest the election of Nazim Union Council No.2, Khaglanwala Tehsil Issa Khel, on account of the lack of the requisite educational qualification. The petitioner No.2 was a joint candidate with the petitioner No.l for the seat of Naib Nazim in the aforesaid constituency. They had succeeded in the election by securing 2666 votes as against the election petitioners, respondents Nos. 2 and 3 herein, who had secured 2120 votes as the second highest contenders. Having disqualified the panel of the petitioners, the learned Election Tribunal proceeded to declare the panel fetching the second highest votes, namely respondents Nos.2 and 3 to be the returned candidates in the following terms:- "It is also found that the petitioners had secured 2120 votes and stood second to the returned candidates while the remaining candidate secured much less votes. Therefore, I do not find any justification for declaring the election as a whole to be void, Resultantly, while declaring the election of the returned candidates to be yoid, I also declare the petitioners to have been duly elected for the seat of Nazim and Naib Nazim Union Council No.2 Khaglanwala Tehsil Issa Khel District Mianwali.
With this result, this petition is accepted. "
2. Learned counsel for the petitioners has not challenged with any vigour the disqualification of the petitioner No.l from contesting the Union Council Election. Consequently, pursuant to the proviso to Rule 14(3) of the Punjab Local Government Elections Rules, 2005 both petitioners as joint candidates stand disqualified from contesting the election. The principle is laid down in Mian Ahmad Saeed v.
Election Tribunal (2003 SCM R 1611 at p.l644(N)).
3. In view of the foregoing legal position as applying to the adjudicated disqualification.Of the petitioner No.l, the contest between the parties before the Court was confined to the consequence of the disqualification of the petitioners' joint candidacy. On this question learned counsel for the petitioners has submitted that the learned Election Tribunal committed a gross error of jurisdiction by presuming that the second highest vote getter automatically succeeds in the election. He has relied upon Sh. Amjad Aziz v. Haroon Akhtar.Khan and others (2004 SCM R 1484) to urge that the relief granted is lawfully available only where the disqualification of the winning candidate is established to be notoriously known in his constituency so that the votes cast in favour of the disqualified winning candidate 'may be treated as having been thrown away for being perversely and wilfully given to a candidate whom the electors knew to be disqualified. In the present case the learned Election Tribunal has not at all adverted its judicial attention towards this fundamental requisite for the relief that it has granted to the respondents Nos.2 and 3. A perusal of the election petition, the issues framed upon the controversy before the Tribunal and the contents of its impugned judgment show that neither the respondents Nos.2 and 3, nor the learned Election Tribunal were conscious of the aforesaid, essential legal' requirement for giving the election to the runner up contestants.
4. In answer to notice issued by the Court in the petition as well as stay matter, ; learned counsel for the respondents has emphasized the disqualification of the petitioner No.l. However, that matter being presently un-disputed he was invited to address submissions on the consequence of the disqualification on the fate of the election. He has made reference to the case of Qazi Aziz .Ul Haq v.
District Judge and others (2006 CLC 805) wherein the Hon'ble Peshawar High Court upheld the relief in favour of the runner up panel after giving the specific findings that the general public voted for the disqualified candidate wilfully with knowledge of such disqualification and thereby threw away their votes. The said precedent in fact supports the petitioners' case.
5. The short question for determination before the Court concerns solely the application of the foregoing relevant . Principles of law to the settled facts of the case, (sic) The learned counsel for the parties have been heard on the aforesaid legal question arising for determination.
6. It is noted that there is no factual controversy touching or in relation to the legal question in issue. Equally, this question: concerns the right of the electors to have their chosen representatives to fill the elected posts. In the present case, the choice of the electors has been upset by the disqualification of the petitioners whilst the respondents Nos.2 and 3 have instead been given the said posts by judicial decree. The legal position is well settled that the crucial pre-requisite for the relief granted by the learned Election Tribunal through the impugned judgment to the respondents Nos.2 and 3 namely, a finding as to the electors having thrown way their votes in the election under consideration has neither been adverted to, discussed or applied by the learned Election Tribunal.
Omission to consider that essential condition of the relief goes to the root of the matter and represents a grave error in the exercise of jurisdiction by the learned Tribunal. As a result the impugned order of the Tribunal is illegal and, therefore, void. Consequently, rather than ignoring the effect of the patent error committed by the impugned judgment and merely considering interim relief at the present stage which would prolong an illegal result ordered by the learned Tribunal, it is just and appropriate that having heard the learned counsel for the parties, the main petition is decided on the short jurisdictional point that it raises. Accordingly, for the reasons noted above the impugned order dated 20-5-2006 is declared to be without lawful authority and of no legal effect.
7. Consequently, the learned Election Tribunal, respondent No.l shall cause the Election Commission of Pakistan to take all necessary steps to hold a fresh election for the post of Nazim and Naib Nazim of the subject Union Council for being filled by candidates chosen by accordance with law. Partly.